This section describes the communications
(letters and news releases) between the Ethics Commissioner and MPs Peter Julian, Wayne Easter, and Bryon Wilfert, and NGO Democracy Watch, prior to release of the Commissioner’s 20 March report.

Just to remind readers, on 23 January 2006, David Emerson was re-elected as the Liberal MP for Vancouver-Kingsway.

On 6 February at 11am, Prime Minister Stephen Harper announced his new Cabinet. Mr. Emerson was sworn in as a member of the new Conservative Cabinet, becoming Minister of International Trade.

Also on 6 February, Democracy Watch issued a news release stating that it would file a complaint about David Emerson under the Conflict of Interest Code for Members of the House of Commons, but did not specify a Section of the Code.

Communications: Letters from MPs to Ethics Commissioner (10 and 13 February 2006)

On 10 and 13 February 2006, MPs Peter Julian (NDP), Wayne Easter (Liberals), and Bryon Wilfert (Liberals) wrote separate letters to Ethics Commissioner Bernard J. Shapiro. The MPs asked the Commissioner to inquire into whether Stephen Harper had violated Sections 8-10 of the House of Commons Conflict of Interest Code.

On 10 February, MP Peter Julian (NDP) wrote a letter to Ethics Commissioner Bernard J. Shapiro. Mr. Julian asked the Commissioner to inquire into whether Stephen Harper had violated Section 8 of the House of Commons Code. Mr. Julian’s letter was quickly made publicly available by the NDP and later appeared as Appendix I of Mr. Shapiro’s 20 March report.

Also on 10 February, MP Wayne Easter (Liberals) wrote to the Commissioner, asking whether Mr. Harper had violated Section 10 of the Code.

And also on 10 February, Mr. Easter issued a news release about his request, which was reprinted as Appendix II of the Commissioner’s report.

Mr. Easter asked for “a formal investigation into the activities of Mr. Harper and those acting as his agents” (italics mine) in his 10 February news release, but no mention is made of “agents” in the 10 February letter from Mr. Easter in Mr. Shapiro’s 20 March report. However, Mr. Easter’s letter mentions the role John Reynolds played in assisting Mr. Harper. (Mr. Reynolds was a good friend of Mr. Emerson, co-chair of the Conservative’s 2006 election campaign, and and a former British Columbia MP for the Conservatives who was not seeking re-election in 2006.)

On 13 February, MP Bryon Wilfert (Liberals) wrote to find out whether Stephen Harper had violated not only Sections 8 and 10 of the Code, but also Section 9. Mr. Wilfert’s letter appears as Appendix III of the Commissioner’s report.

Mr. Wilfert’s letter, like Mr. Easter’s, mentions the role John Reynolds played in aiding Mr. Harper.

So Mr. Julian, Mr. Easter, and Mr. Wilfert all asked the Ethics Commissioner to investigate whether Stephen Harper violated Section 8 of the Code; Mr. Easter and Mr. Wilfert also asked whether Mr. Harper violated Section 10 of the Code; and Mr. Wilfert alone asked whether Mr. Harper violated Section 9. (Mr. Easter and Mr. Wilfert both raise the role that John Reynolds played in David Emerson’s switch of parties.)

Communications: Letter from Ethics Commissioner to MPs (2 March 2006)

On 2 March 2006, the Commissioner Bernard J. Shapiro sent a letter to the three MPs announcing that he was launching an inquiry in response to the letters.

The Commissioner’s letter, which the media obtained, said that he was voluntarily extending his inquiry to cover whether David Emerson had also violated parts of the House of Commons Code, in response to inquiries from the general public. Mr. Harper accused the Commissioner of political bias, and said he would not cooperate with his inquiry.

On 20 March 2006, the Commissioner’s report was published in English and French.

The report described the inquiry into David Emerson that the Commissioner had announced on 2 March. Mr. Shapiro had conducted four additional inquiries in response to queries from the public. Those inquiries were about whether David Emerson had violated Sections 8-9 and Principles 2(b) and 2(e) of the House of Commons Conflict of Interest Code which Mr. Shapiro referred to as the Members’ Code.

The report found that neither Stephen Harper nor David Emerson had violated anything in the House of Commons Code, though it raised concerns about Mr. Emerson’s switch of parties and the circumstances under which done so.

Mr. Shapiro reported that “neither Mr. Harper nor Mr. Emerson contravened any of the specific Sections of the Members’ Code.” Mr. Shapiro also accepted “Mr. Emerson’s ... claim that accepting Mr. Harper’s offer [of a Cabinet position] seemed, at least to him, a way to better serve his city, province and country.”

However, Mr. Shapiro added, “I believe that the discontent expressed by Canadians on this matter cannot be attributed merely to the machinations of partisan politics. Fairly or unfairly, this particular instance has given many citizens a sense that their vote — the cornerstone of our democratic system — was somehow devalued, if not betrayed.”

Mr. Shapiro quoted Principle 2(b) twice in his report. The second time, he added his own emphasis in both the English and French versions of the report, which is repeated below.

2. Given that service in Parliament is a public trust, the House of Commons recognizes and declares that Members are expected

(b) to fulfill their public duties with honesty and uphold the highest standards so as to avoid real or apparent conflicts of interests, and maintain and enhance public confidence and trust in the integrity of each Member and in the House of Commons;

Accordingly, although technically there has been no violation to the rules of conduct of the Members’ Code, the incident in question does raise the whole issue of whether the Principles upon which it relies have been respected.

Mr. Shapiro continued, explaining why there was no violation of the Principles he had cited:

The Preamble to the Code is both general and wide ranging, and can be understood to apply to a wide range of ethical principles, including but not limited to conflict of interest. The Code — to which my mandate as Ethics Commissioner is limited — deals only with conflicts of interest. Canadian citizens, however (at least as represented by those who have contacted my office), have expressed more of an interest in values (as represented in the Preamble) and, possibly, in character, than in rules (as represented by the Code itself).

The report did not deal with Democracy Watch’s request to also investigate whether Mr. Emerson had violated Principle 2(c) of the Code, and the Ethics Commissioner apparently never did deal with this request.

As quoted in the preceding section, Mr. Shapiro argued that Principles such as 2(b) were part of a “Preamble” to the House of Commons Code
that should be “understood to apply to a wide range of ethical principles, including but not limited to conflict of interest” whereas “The Code ... deals only with conflicts of interest.” Moreover, the Principles are not “rules,” the Commissioner argued.

On 20 March 2006, Democracy Watch issued a news release, commenting on the Commissioner’s report. Democracy Watch criticized the Ethics Commissioner for “fail[ing] to rule properly on complaints about violations of federal ethics rules” and stated that he should resign or be dismissed. However, Democracy Watch did not provide details about why Mr. Shapiro had failed to rule properly.

In a 23 January 2007news release, Democracy Watch provided a detailed critique of Mr. Shapiro’s conclusion that there was no violation of Principle 2(b) and others. Democracy Watch claimed that the Commissioner’s argument was “legally incorrect” because:

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the title of the part of the ... [House of Commons] Code that contains section 2 is “Principles” not “Preamble”;

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the dictionary definition of the word “principle” is “law” or “rules of conduct” or “code of conduct”;

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section 2 begins with the words “Members are expected” and then contains rules that members are clearly expected to comply with;

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under subsection 72.05(1) of the Parliament of Canada Act, you as Ethics Commissioner are designated as the only administrator/enforcer of the MPs Code, and as a result you are the only one who can enforce the rules in section 2 of the MPs Code, and;

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under subsection 72.05(3) of the Parliament of Canada Act, you as Ethics Commissioner are under the “general direction” of the House of Commons Standing Committee on Procedure and House Affairs, and that Committee has not directed you not to enforce the rules contained in section 2 of the MPs Code.

An examination of the communications about the House of Commons Code and the Commissioner’s report reveal that the Ethics Commissioner received no less than eight different inquiries about whether David Emerson’s switch of parties violated the Code. Table 2 summarizes these eight inquiries, in the order in which either the Ethics Commissioner received them or he said he was responding to them. Blue font indicates the first person or organization to request a particular inquiry:

*
2nd March 2006 was the date the Ethics Commissioner first announced expansion of inquiry to include David Emerson as a possible violator of the House of Commons Conflict of Interest Code.
Nature of expanded inquiry revealed 20 March.
Public likely began sending inquiries to Commissioner about Mr. Emerson immediately after he announced he had switched parties.

2007 www.DavidEmersonLegal.com

The eight inquiries in Table 2 can be meaningfully categorized four different ways, by: date, code item, alleged violator, and the originator of an inquiry. Table 3 shows these four categorizations.

Table 3: Breakdown
of eight inquiries about possible violations of House of Commons Conflict
of Interest Code by Mr. Harper and Mr. Emerson (four categories)

In response to queries from the public, the Commissioner also investigated whether David Emerson violated Sections 8 and 9 of the Code.

Section 8 of the House of Commons House of Commons Code is as follows:

Furthering private interests

8. When performing parliamentary duties and functions, a Member shall not act in any way to further his or her private interests or those of a member of the Member’s family, or to improperly further another person’s private interests.

9. A Member shall not use his or her position as a Member to influence a decision of another person so as to further the Member’s private interests or those of a member of his or her family, or to improperly further another person’s private interests.

10. (1) A Member shall not use information obtained in his or her position as a Member that is not generally available to the public to further the Member’s private interests or those of a member of his or her family, or to improperly further another person’s private interests.

(2) A Member shall not communicate information referred to in subsection (1) to another person if the Member knows, or reasonably ought to know, that the information may be used to further the Member’s private interests or those of a member of his or her family, or to improperly further another person’s private interests.

The Ethics Commissioner’s letter of 2 March 2006 said that he was investigating David Emerson in response to inquiries from the public. In his 20 March report, the Commissioner noted that the public had “specifically identified Principles 2(b) and 2(e) ... as ... provisions that might have been breached by Mr. Emerson.”

On 14 March 2006, NGO Democracy Watch asked Mr. Shapiro whether David Emerson had violated Principle 2(c) of the House of Commons House of Commons Code, and also Principle 2(b). The Ethics Commissioner never seems to have replied to Democracy Watch’s request.

(b) to fulfill their public duties with honesty and uphold the highest standards so as to avoid real or apparent conflicts of interests, and maintain and enhance public confidence and trust in the integrity of each Member and in the House of Commons;

(c) to perform their official duties and functions and arrange their private affairs in a manner that bears the closest public scrutiny, an obligation that may not be fully discharged by simply acting within the law;

(e) not to accept any gift or benefit connected with their position that might reasonably be seen to compromise their personal judgment or integrity except in accordance with the provisions of this Code.

On 2 March 2006, when Mr. Shapiro announced his preliminary inquiry, Mr. Harper accused Mr. Shapiro of political bias, and said he would not cooperate in his inquiry, though it appears he did provide Mr. Shapiro with some assistance (cf. “Based on the responses provided to me by Mr. Harper ..., and the conversation I had with Mr. Harper on March 2, 2006”). Mr. Harper’s comments and statements about not cooperating don’t seem to fit with Sections 27(5) and 27(8) of the Code which are as follows:

Respect for the inquiry process

27. (5) Once a request for an inquiry has been made to the Ethics Commissioner, Members should respect the process established by this Code and permit it to take place without commenting further on the matter.

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The Federal Accountability Act created a new position — “Conflict of Interest and Ethics Commissioner” — from two old ones, the Ethics Commissioner and Senate Ethics Officer.

 The new Commissioner must have judicial or quasi-judicial training, so Mr. Shapiro is not eligible for the new position.

 The new Commissioner continues to administer the House of Commons Code, plus other legal instruments, and continues to initiate formal investigations.

 The new Commissioner can no longer accept inquiries directly from the public. Subsection 44(4) of the Act permits members of the public to advance complaints to the Conflict of Interest and Ethics Commissioner, but only through a Member of the House of Commons or Senate.

Ethics Commissioner Bernard Shapiro was appointed in May 2004 for a five-year renewable term. On 29 March 2007, Mr. Shapiro tendered his resignation, effective 31 March. A spokesperson for the Commissioner’s office said that Mr. Shapiro resigned because he would not be eligible for the equivalent position created under the Federal Accountability Act (see preceding section and also, e.g., Mayeda, 2007). Mr. Shapiro was the first and only Ethics Commissioner just for the House of Commons.